The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITHLEAVE TO AMEND (DOC. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Michael Morse ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on April 1, 2011 in the Sacramento Division of the Eastern District of California. Plaintiff case was transferred on April 6, 2011 to the Fresno Division.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff is incarcerated at North Kern State Prison ("NKSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: NKSP warden, and correctional officers Matt Doeling, R. Brown, K. Baker, W. Rivera, and Cunninham.
Plaintiff alleges the following. On August 28, 2010, Plaintiff exited his cell to inform Defendant Doeling of his complaint regarding a hazardous and unconstitutional environment. Compl. 3. Plaintiff requested to speak with the senior officer lieutenant. This request was denied. Id. Plaintiff then stated that he would not participate in the "implementation plan-mix nuisance" which interfered with Plaintiff's rights. Id. Plaintiff was threatened with pepper spray and struck while pouring milk on his face in the back of his head. Plaintiff defended himself by attempting to subdue Defendant Doeling. Id. After Plaintiff was freed from Defendant Doeling's assault, responding officers handcuffed Plaintiff. Id. at 3-4. Plaintiff was then blindfolded and continuously slammed and kicked cause swelling and problems walking. Id. at 4. Plaintiff was hospitalized at San Joaquin. Plaintiff contends retaliation and excessive force. Plaintiff requests as relief compensatory and punitive damages.
To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). Here, Plaintiff fails to link Defendants NKSP warden, Borwn, Baker, Rivera, Cunninham to any acts that would demonstrate a constitutional violation. Plaintiff thus fails to state a claim against them.
B. First Amendment Retaliation
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his ...